Recently, an appellate court in Texas refused to deem a lawyer representing a native American tribe a “public figure” for purposes of a libel lawsuit.  A newspaper article covering an increasingly public controversy within the Kickapoo Indian Tribe stated that the tribe’s lawyer, Gloria Hernandez, was “skimming 10% of casino profits off the top.”  In fact, what she had said was that “she was hired to be legal counsel for the tribe in October 2002, and was on retainer at the time of the hearing.  In response to a question about how much of her legal practice is devoted to work for the tribe, Hernandez testified, ‘I make roughly about ten percent of my income from the tribe.’” ZYZY Corp. v. Hernandez, No. 04-10-00311-CV, 2011 WL 228101 at *1 (Tex.App.-San Antonio 2011)

Hernandez sued the newspaper for libel.  The newspaper argued that Hernandez had injected herself into the public controversy in an attempt to influence its outcome.  As a result, the newspaper argued, Hernandez was a “limited-purpose public figure” and could only prove libel by showing the newspaper acted with actual malice.  The trial court disagreed with the newspaper and denied its motion for summary judgment.

The appellate court agreed with the trial court and upheld its decision.  The appellate court held that Hernandez’s actions, which included accompanying the tribe to meet with elected officials to discuss the controversy, did not render her a public figure.  Instead, the evidence showed that Hernandez provided legal advice and representation to the tribe.  There was no evidence she became involved in the controversy beyond her role as legal advocate.  There was also no evidence that she thrust herself into the public eye by engaging the media, had any special access to the media or attempted to use the media to influence the outcome of the controversy in any way.  As a result, Hernandez was not a “limited-purpose public figure” under the law and did not have to show that the newspaper acted with actual malice to prove libel.


© 2011 Nissenbaum Law Group, LLC

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